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Judy Clark is on the Cover of the NY Times Magazine

rabbifink — Thu, 12 Jan 2012 16:46:17 +0000

Photos - Right: Nan Goldin for The New York Times. Left: Associated Press.

You may recall that I a little while ago I met and befriended an incarcerated woman named Judith Clark. See: My Visit With Judith Clark at Bedford Hills Correctional Facility.

Judy is a Jewish woman who is serving a 75 year prison sentence for her role as a getaway driver in a famous Brinks truck robbery in my hometown of Monsey NY that left several men dead, some 30 years ago. The robbery was for the benefit of a far-left extremist group. Her sentence was severe and it was mostly because she treated the trial as an opportunity to make anti-government statements. She viewed herself as a martyr for her cause and did not cooperate during the proceedings.

Supporters of Judy were hoping for clemency last December. When that did not come, many of us were very disappointed. It seemed that her best chance at freedom had passed her by.

You may ask, why I would support clemency for a woman who played a role in several deaths. The short answer is that I don’t. The woman I met, the woman I support, is absolutely a different woman that the woman who participated in those heinous acts three decades prior. The Judy Clark from 1981 has been transformed into a new and improved Judy Clark. A woman, who by all accounts, gives every indication that she has been rehabilitated. Even the most cynical view is that she “only reformed herself to get out of prison”. But there is no doubt she has reformed.

It’s a rare case, where a person actually changes for the better while prison. It’s at least as rare as people who change their lives while not in prison. And we all know how hard and rare it is to change one’s life. Supporting Judy Clark is supporting the human spirit and its ability to improve. It is supporting a woman with an infectious smile and important message despite her shortcomings. I support a woman who admits her mistakes, regrets them very much and tries tirelessly to make a positive difference in others.

The article in the NY Times magazine is an in-depth look at Judy, her circumstances and her supporters. Two of those supporters mentioned in the article have become friends of mine through Judy. If you want a full picture of what happened in 1981, what happened in the 30 years since and the reactions from across the spectrum of supporters and opponents of Judy I strongly suggest reading the article.

Most of all, I urge you to consider what our justice system should do when someone in prison genuinely changes their life. When someone does teshuva and repents for what they have done, how long must they suffer for their previous errors?

Please read: NY Times Magazine

Listen to letters written on Judy’s behalf as read by some well known actors: Judithclark.org

Michigan Protects Bullies and Turns Religion Into a Weapon

rabbifink — Fri, 04 Nov 2011 17:27:08 +0000

UPDATED! See bottom of the post.

Last week, forty seven states in the union had anti-bullying statutes. This makes it easier for schools to fight bullying. It also gives potential bullies reason for pause and hopefully can stave off some of the bullying that is going on in schools across America.

Bullying can have a very negative affect on the victims and several suicide deaths have been attributed to the lingering trauma of being bullied in school.

Perhaps the easiest targets of bullying are young people who do not conform to specific teenage archetypes.

For a little while I was working for JSU (a wonderful organization) and went to Public Schools every day during lunch and mentored Jewish clubs. I had to walk through the common areas where hundreds of teens were hanging out and enjoying their lunch. It was uncanny. Little groups formed all around the school. In each group, very specific types of kids were enjoying time together. Goth kids in one area, jocks in their jerseys in another with cheerleaders in their uniforms nearby, Asian kids texting in one corner, minority groups, African American and Latino teens in their respective areas. It was jarring to see such a diverse school divide itself during free time into small social groups of mutual self-identifiction.

I used to say it felt like the set of Mean Girls. Maybe now I would say it felt like the set of Glee.

It’s easy to see how a social misfit could feel absolutely isolated in school. Add to that the humiliation and abuse of bullying the burden can become too much to bear.

For what it’s worth, teens who don’t fit in with typical gender roles are particularly maligned. If a guy is too feminine or a girl is too masculine their suffering at the hand of cruel classmates can be compounded. It gets even worse if the victim already feels guilt from their parents, religion or negative self perception.

Michigan is one of the last holdouts and does not have an anti-bullying statute. But now it has something else. It has a statute that actually protects certain types of bullies.

A bill was proposed a while back to create strong anti-bullying legislation. It passed this week. But one provision was added at the last moment that completely turns the law on its head. The provision states:

“This section does not abridge the rights under the First Amendment of the constitution of the United States or under article I of the state constitution of 1963 of a school employee, school volunteer, pupil, or a pupil’s parent or guardian. This section does not prohibit a statement of a sincerely held religious belief or moral conviction of a school employee, school volunteer, pupil, or a pupil’s parent or guardian.”‘

So if my “sincerely held religious belief” says all Jews are subhuman and I call all Jewish kids in the school names and taunt them about their subhuman status, that’s “protected” by the bill. If me religious beliefs says all Christians are infidels, then I can bully all the infidels. If my religion says that gay people are causing earthquakes and tsunamis then I can bully all the gay kids.

Sure, there are some bullies who don’t invoke the name of God into their bully tactics. But that’s all changed now. If you want to bully somebody and avoid punishment just make sure you can justify it in the name of religion.

This is horrible. Not just because of what it does for bullies and does to victims. But because of what it does to religion.

Once again, religion is being used as an excuse for destructive and harmful behavior. Once again religion becomes a shield for bad behavior. This is what give religion a bad rap. People using religion to kill infidels, avenge the death of a god, hate people who are different, demonize the other. That is everything that is wrong with religion.

If your religion says that somebody is wrong or bad, keep it to yourself. Don’t use your beliefs as a way of harming others. If you want to live in a place that only allows your kind of religion and permits religious persecution to others LEAVE THE UNITED STATES OF AMERICA (please) and find a place that will let you do it. That’s what they should have said. Instead, they turned Michigan into a safe haven for hate, bigotry and pain. It’s a disgrace.

This is not what religion is supposed to be. But thanks to the Michigan State Senate we are told that religion is precisely just that. A weapon in the hands of hateful people.

There is also an irony here. The bill is named for a victim of bullying, Matt Epling, who committed suicide. His family has been involved in the crafting of this legislation to help protect kids from bullies. But now they are forever attached by name to a bill they never would have supported thanks to some bullies in the State Senate. First Matt was bullied by his peers and now his parents are being bullied by the legislature.

I hate this law because of what it does for bullies but I also hate the law for what it says about the current state of religion in this country.

Watch State Senator Gretchen Whitmer passionately respond to the bill:

Links: Time, MattEpling.com

UPDATE: The exception has been dropped!

The Rubashkin Case: A no-spin, unbiased summary

rabbifink — Mon, 19 Sep 2011 19:00:33 +0000

I post this as a public service. (And a challenge to all the frum sites and newspapers to publish this summary.)

For a couple years now, the “frum” news sites and papers have reported a whitewashed version of the Rubashkin case. This has caused foolish outrage, claims of anti-Semitism, calls for the lives of the judges who presided over the appeal, condemnation of the criminal justice system and a gross double standard / hypocritical view of justice. All the frum media has been able to learn from this episode is not to trust the government and that we are a few logical steps away from Nuremberg Laws being applied to America. I have not seen one mainstream news article or editorial on honesty in business. Not one. This is understandable, because in the eyes of the frum community, Rubashkin is the victim of a blood libel and a contemporary Dreyfuss. In my opinion, this is reprehensible. We lose credibility as a community when we are not honest. But more importantly we are missing the greater lesson in all of this. Don’t break the law.

All the while, the frum community is footing the bill. (For an excellent review of why this case is not Pidyon Shvuyim I recommend an article written by Dovid Lichtenstein in the Spring 2011 issue of Hakira.)

This post is an attempt to set the record straight. Everything in this post is public record. Everything in this post is based on facts. There is no opinion in this post.

Rubashkin got a raw deal. He is a victim of a very punitive system. The system is imperfect. But those flaws do not kasher the reality of what happened. For more on my personal outrage over the extreme sentence levied against Rubashkin please read this: 27 Years Is A Harsh Sentence But Not The Only Harsh Sentence

What follows is free of compassion or vendetta. It is an attempt to portray pure fact. Please feel free to reference this post when discussing the case with others:

Rubashkin was convicted of 86 counts of bank, wire, mail fraud making false statements to a bank, money laundering and violations of an order from the Secretary of Agriculture. His sentence was 324 months (27 years) which was on the low side of the guidelines.

In 1999 Agri opened a line of credit with First Bank Business Capital. To secure the loan, Agri offered its inventory and accounts receivable as collateral. Meaning, the bank gave the loan assuming that Agri was making a certain amount of money. Showing a greater number in accounts receivable would increase the credit line and increase the risk for the bank. The loan was for about $30 million daily in 2008.

Agri inflated its accounts receivable in two ways. First, they fabricated invoices to increase the accounts receivable. These were not errors. They were deliberate. Some of the false invoices were to accounts that prepaid Agri, so no invoices were needed. Others were to accounts that sold no meat like a clothing store. Others reflected balances on accounts paid in full. Others just inflated the amounts owed. The court estimates that these false invoices fraudulently increased Agri’s credit line by $10 million.

The second way Agri inflated it’s account receivables was by depositing money that was supposed to be paid to the receivable account into a separate account. This gave the bank the impression that the receivable account was still owed more money than it was actually owed.

Also, Agri would pay down the loan with money that came into their account from the bank. Agri would take money from the operating account, deposit it into the Yeshiva which was funded by Rubashkin and a local kosher market. The school and market would write checks back to Agri and they were deposited into the bank account designated for accounts receivable. The bank would see these deposits and assume the money coming in was genuine income. This fraud gave Agri an additional $3 million in credit that was obtained fraudulently.

These acts were the basis for the money laundering charges.

Finally, the bank’s agreement with Agri required that Agri comply with the Packers and Stockyard Act of 1921. It did not comply with the Act so the loan was continued fraudulently.

The records of these acts of fraud date back to January 2008. Months before the raid on Agri for immigration charges.

The records of money laundering begin in November 2007. Again, far in advance of the raid on Agri for immigration charges.

In May 2008, Immigrations and Customs Enforcement (ICE) raided Agri and arrested almost 400 hundred employees for immigrations violations. Around that time Agri was notified that it was the also the target of a federal investigation for financial crimes.

In November 2008, Rubashkin was arrested and indicted on 163 counts. The aforementioned fraud related counts and 69 counts of harboring undocumented aliens for profit and variety of other escalations like conspiracy and aiding and abetting.

For efficiency, the court split the fraud related counts and the immigration counts. It decided to try the financial crimes first. Rubashkin objected. The court proceeded regardless.

One of the employees arrested in the raid asked that the judge (the Honorable Linda Reade) be recused from his immigration case because she was involved in the logistics of preparing the courts for the barrage of arraignments and cases following the raid. Literally, hundreds of defendants were tried in makeshift court rooms. The Chief Judge was needed to make the necessary arrangements. The court acknowledged involvement but as Chief Judge this involvement was minimal, necessary and not prejudicial.

Rubashkin’s trial team was aware of this issue and aware of the court’s deicision not to recuse itself from the other trial and did not pursue the matter further during trial. A deadline for recusal motions was also set. No motions were made by Rubashkin’s lawyers before the deadline.

The kind of conduct that the court deems grounds for recusal has been found in two situations cited by the court. In one case the U.S. Attorney who was investigating the case became the judge. He was required to recuse. In a second case, the judge actually met with prosecutors and assisted them with their case before the grand jury. Mere knowledge of the raid and logistical assitance in setting up the necessary arrangements for en masse criminal trial after the raid does not rise to the level requiring recusal.

During the trial for the financial crimes some evidence of the immigration violations that were considered relevant to the fraud was introduced. Some of the charges in the fraud case were predicated on Agri’s statement that it was not “in violation of any law, statute, regulation… which . . . would in any respect materially and adversely affect the collateral . . . or [Agri's] property, business, operations, or condition.” Since, the Bank’s collateral would be severely affected if Agri was violating immigration laws, and Agri was violating immigration laws, these violations formed the basis for 5 courts of fraud.

It has been argued that since Rubashkin was not convicted of immigration violations, the court should not have considered the immigration violations in the fraud case. The court argues that this is irrelevant. Individuals working for Rubashkin were convicted of immigration violations and were under his supervision. Rubashkin is culpable for those convictions as well.

The 27 year sentence has also been challenged. The prosecution and Rubashkin disagree on the amount of loss caused by the fraud. According to prosecutors the amount is $27 million and according to the defense it is $12 million. (Side note: this means that Rubashkin acknowledges that he is guilty of at least a $12 million fraud).

Rubashkin’s number is assessed by calculated how much extra money the bank lent him based in his fraud. The prosecution’s number is arrived at by calculating that number plus the default that Agri owed on the loan. The test to determine which number is used is a “foreseeabiiity test”. The court held that is was foreseeable that borrowing $12 million fraudulently would result in a default. Since it is foreseeable, the court properly considered that number when assessing the fraud.

As the to sentence, 324 months was on the low end of the range. The sentence was mitigated by Rubashkin’s circumstances as a father, first time offender and philanthropist. Without those factors the sentence would have been greater.

Another factor was Rubashkin’s lack of remorse during the trial. The perception of the court reflected the outrage of the community. In the orthodox Jewish community, Rubashkin was elevated to hero status as if he had done no wrong. This was consistent with Rubashkin’s refusal to cooperate with the government in their investigation and other trials. It also stands in stark contrast to other white collar criminals and even other defendants arising out the raid of Agri in November 2008.

Letters on behalf of Rubashkin were written by U.S. Attorney Generals and others. Their letters focused on the unfairness of the guidelines. They did not say Rubashkin was not guilty. They did not say that Rubashkin did not get a fair trial. They did not say the case was an example of anti-Semitism. Their complaint was limited to the general harshness of the sentencing guidelines. They did not say the guidelines were misapplied. They limited their criticism to the guidelines using Rubashkin’s case as an example of why the guidelines must be changed.

It should be noted that 90% of Federal cases settle. This is because the Feds rarely indict unless they are sure they are going to win. Of the 10% of cases that do not settle, the Feds win about 90% of those. One in a hundred Federal cases is won by the defendant. Rubashkin’s lawyers knew the score. If he had settled and entered a guilty plea and cooperated his sentence would likely have been 5 years or less (this is pure speculation but based on conversations with defense attorneys and prosecutors).

Tomorrow I will be posting my theory as to why Rubashkin has the blind support of the community. Stay tuned. (That post is going to be opinion)

UPDATE: And here it is –> How Did We Get Here? Explaining the Unabashed Support for Rubashkin

Sources: Sentencing Memoranda, Denial of the Appeal, News Articles

Landmark Eyewitness Identification Case Decided in New Jersey Supreme Court

rabbifink — Fri, 26 Aug 2011 12:31:08 +0000

In a criminal trial, several kinds of evidence are provided by the prosecution to prove the defendant is guilty. The most influential of these forms of evidence is often an eyewitness identification. A case with a positive ID is almost always going to result in a conviction.

The most common cause for an erroneous conviction of an innocent person is eyewitness misidentification. For years, experts have been explaining that misidentification can occur by mistake and with good faith. That doesn’t make them reliable. It just makes misidentifications into honest mistakes.

In many states legislation has been proposed to curb the effects of eyewitness identification. In New Jersey, the Supreme Court has spoken from the bench in an effort to fix this problem.

When an eyewitness identification may be unreliable, the judge in the case is required to hold a hearing to determine the witness’ reliability and then must instruct the jurors how much weight to place on the identification. In most cases the evidence will be heard, but the judge will educate jurors on the reliability of eyewitness identification.

Social science and decades of research have shown that eyewitness identifications are very often unreliable. Factors such as fear, bias, unfamiliarity with the defendant, focusing on the weapon, police misconduct, length of time between the crime and the ID all play into the reliability of the identification. Time and time again, identifications have been shown to be erroneous and have contributed to the death of innocent defendants via the death penalty and decades of prison time for other innocent defendants.

The New Jersey case comes ahead of a highly anticipated United States Supreme Court case next year that will decide an eyewitness identification issue. It is likely that the Supreme Court will follow the model set forth by the New Jersey Supreme Court.

Link: NY Times

For an amazing account of a false eyewitness identification watch these two videos. The story of the conviction is interesting and enlightening, but the story of the exoneration very inspiring:

Oops! Apparently Giovanni Ramirez Didn’t Attack Brian Stow

rabbifink — Fri, 22 Jul 2011 18:32:10 +0000

The LAPD has arrested two new suspects in the Brian Stow beating.

They have also exonerated their first suspect Giovanni Ramirez. Ramirez was never charged in the attack because investigators felt there was not enough evidence to get past the preliminary hearing. Instead, Ramirez is in jail for violating his parole when guns were found in the home where he was living. That got him 10 months in jail.

The case is disturbing on quite a few levels.

What bothers me more than anything about the Ramirez arrest is summed up nicely with this quote from the LA Times:

“The LAPD’s case against Ramirez stalled from the start. Police took him into custody during an early morning raid May 22 after a parole agent raised suspicion that Ramirez might be one of the assailants, and then multiple witnesses identified him from photo lineups.”

(Emphasis mine.)

This means that although there was no forensic evidence, there was plenty of exculpatory evidence, like an alibi, Ramirez was arrested because multiple people identified him in photo lineups.

But if he is being exonerated it is clear that he didn’t commit the crime. So why was he identified by anyone?

Were those identifying witnesses liars?

Eyewitness identification is one of the weakest forms of evidence. Yet is given disproportionate weight by law enforcement and juries. People think they can remember what someone looks like. But, by and large, we are terrible at it. We get even worse when the witness is from another race.

Add that to shady police work, like hinting at the “correct identification” and you have a toxic mix of unreliability and sneakiness.

Eyewitness identifications have put innocent people in jail, even given them the death penalty. Ramirez is just the latest victim. A lucky victim too. If those identification witnesses testified in court that they saw Ramirez, you can bet dollars to donuts he would have been convicted.

I wrote a paper on the science behind bad IDs and how to fix some the problems inherent to IDs in court proceedings. Hopefully it will be published soon.

In Jewish Law, eyewitnesses need to be vetted so carefully that it is literally impossible for them to lie. And if they somehow pass through the vetting process and are caught lying later on, they are punished for their lies. There is no such system in secular law. Just a cross-examination at trial and rarely any punishment for lying.

Nothing can teach the public how flawed eyewitness identification is like real life examples in the news. Perhaps this is the silver lining to the botched Ramirez arrest. At least the LAPD and LADA were honest enough not to try Ramirez. But now is the time to teach the public about eyewitness identification. They mean very little.

Link: LA Times

Andrew Bynum Parks in an Illegal Spot and Teaches Us About Secular Laws vs. Religious Laws

rabbifink — Thu, 21 Jul 2011 22:19:54 +0000

Lakers center Andrew Bynum found himself on the local and national news for the wrong reasons this week. It seems that Bynum makes the news every off-season for some reason or another.

This is the second time he made news in a shopping mall parking lot. Last time it was Kobe Bryant saying to ship him out on video while in a parking lot. This time, Bynum was caught on camera parking his car in a handicapped spot.

In the grand scheme of things, it is not a big deal. People do it all the time. Who could forget the time George Costanza needed a parking spot in a pinch so he pulled into the handicapped spot?

Of course, the Bynum haters have used this to prove how immature Bynum is. It’s hard to take such criticism seriously because Andrew Bynum is only 23 years old. At that age, being immature is normal.

The incident resonated with me for a completely different reason.

Laws in secular countries, like the USA, are man made rules. For every rule there is a reaction, punishment, fine and stigma associated with the breaking of the rule. Commit murder and the punishment may be the death penalty, or life without possibility of parole (ie death in prison). Get caught speeding, you get a fine for a few hundred dollars. Skip out on paying your taxes, risk jailtime and a heavy fine.

The punishments may be deterrents, forms of retribution, attempts to rehabilitate or simply incapacitation. If you are willing to pay the price, there’s nothing really stopping you from breaking the law. It’s a risk / reward analysis.

If someone is able to afford speeding tickets, they can choose to speed and pay the fine is they get caught. For Andrew Bynum the risk of getting a ticket (he didn’t) did not outweigh the reward of parking up close. Is this immature? Sure. Is it a reasonable way of thinking within our system? I think so.

But when contrasted with a system of religious law, like Jewish law, another possibility enters the picture.

In Jewish law, there is a moral imperative to follow the law. This means that even if you want to break the law and take your punches and suffer the eternal punishment, you have acted immorally. In fact, the rabbis teach us that if someone says “I will sin and then repent, even the forgiveness attained on Yom Kippur won’t forgive that sin”. In religious law, the act is wrong. The punishment is incentive to do the right thing. But the law represents the right thing.

Now, I am not advocated a system of religious law in any free country. That would be a terrible idea. How can there be freedom when there is a system of law that only works for some people? (And calls non-believers heretics / infidels etc.?)

But if I had all the money in the world, there would still be an imperative for me not to take that handicap spot. Jewish law requires giving up a seat (or in this case, parking spot) for anyone elderly or infirm. Parking in the spot might be okay, but if someone who needs the spot comes by and is forced to take a different spot, I (may) have violated the law. Religious law superimposed on top of secular law can work very well. In this case, there would be no risk / reward analysis. It would not matter if I was willing to pay the price. If it is wrong, I cannot do it. Driving recklessly would fall under the same category. In Jewish law, one is not permitted to put their life in danger. Driving too fast is dangerous. Even if I am willing to pay the fine, I can’t drive so fast that it would dangerous because it is wrong to do so.

Andrew Bynum acted in a way that is consistent with how secular law works. Having a religious law to superimpose on those laws could go a long way to not rationalizing breaking the law.

How timely are the words of the Chief Rabbi of the UK, Rabbi Jonathan Sacks on this week’s Torah portion:

The Torah sets forth a… way, in which people obey the law because they have voluntarily undertaken to do so. This is a society based not on power or the pursuit of self-interest but on freely embraced moral obligation.

Link: NBA

HT (Rabbi Sacks quote): @howielb

Short Post About a Long (and very good) Article

rabbifink — Mon, 18 Jul 2011 22:48:33 +0000

Reason Magazine is an unofficial voice of Libertarianism.

I relate to many Libertarian views and I read articles that Reason posts on Facebook all the time. The article I read today was so good that I want to share it with all of you.

I am not saying that I agree with everything written in the article. But I am saying that the article very clearly chronicles the mainstreaming of the irrational fear of Islam. Most importantly for orthodox Jews are the sections that compare how halacha (Jewish law) is treated by our secular government and the general public with how Sharia (Islamic law) is treated by our secular government and the general public.

Agree or disagree with the conclusions in the article, the facts are worth knowing and the analysis is worth discussing.

The article is long. Find yourself 15-20 minutes to read the whole thing. Feel free to sound off in the comments.

Read: Reason

The Casey Anthony and Dominique Strauss-Kahn Trials Put the Criminal Justice System on Trial

rabbifink — Wed, 06 Jul 2011 04:59:53 +0000

Recent developments in the Dominique Strauss-Kahn case and the Casey Anthony acquittal raise some real issues with our criminal justice system.

When the public thinks it knows if a person committed a crime, the public wants that person apprehended, tried, convicted and sentenced. The public does not have much patience for the investigations, lengthy pre-trial periods, acquittals or light sentences.They reason, “if we know they are guilty, just put them away”, “if they get away with it, it’s a travesty”.

However, very often, even when the public is convinced of guilt and culpability, the justice system fails the public. Charges are dropped, bail is reduced, juries acquit, sentences are meek.

To the public this is all very wrong.

This demonstrates the huge disconnect between the actual justice system and the perceived justice system. The public thinks that if someone did something wrong then they should be and will be punished. That is simply not even close to true. First of all, many people who do nothing wrong get punished anyway. Further, committing a crime does not mean one is guilty by law. Guilt by law is determined by evidence and believability. The Anthony and Strauss-Kahn cases show quite clearly that without real evidence and with non-credible complaining witness, the case will fall apart. This is regardless of whether the crime was committed by the defendant.

To the public this means the court got it wrong. But really it did not. The court has a much higher bar for conviction than the public has. That is a good thing not a bad thing.

The Anthony and Strauss-Kahn cases also demonstrate that with good lawyers (or poor prosecution) and preparation, any case can be won by the defense. This exposes one of the true flaws in the justice system. Some people are more well represented than others. Lower class defendants charged with the same crimes are far more likely to plead them out or go to trial and find that jurors are far less sympathetic to defendants with gang affiliation and tattoos up and down their bodies. Perceptions matter. Looks matter. Social class matters. But those things should not matter.

The public doesn’t really care about these things. But they should. These are issues that create inequality in our justice system. That high bar for conviction seems to work in favor of certain people. Not all people.

The problems in the Strauss-Kahn and Anthony cases are problems in many cases that result in convictions. It just doesn’t happen to middle and upper class people. So the public doesn’t know about it. Or worse, the public doesn’t care.

It’s Time to End the “War on Drugs”

rabbifink — Mon, 20 Jun 2011 16:43:06 +0000

It’s been almost 40 years. Is that long enough for a war?

Whenever one begins a war one needs to consider the exit strategies. This was a fatal flaw in Vietnam, Iraq and Afghanistan. I believe it is also a fatal flaw in the one war being fought on American soil: The War on Drugs.

It is hard to consider what was thought of as the end game of this war when it began. Was the end of the war going to be some utopian time where no one used drugs? Was it when all the drug users were in prison? How would winning this war look?

We can ponder those questions because we know with certainty what losing this war looks like.

I asked a public defender who works in felonies what percentage of their cases are small time drug charges (not drug king pin charges). Her response? 90%. 90%! Nine out of ten people being processed by our criminal justice system for serious crimes were busted for drugs.

Felony drug charges can be filed for tiny amounts of drugs (like enough for a couple “highs”).

The prisons are bursting with drug criminals. It costs $40,000 a year to incarcerate someone for 1 year. 1 year! It costs untold amounts of money and energy to arrest, prosecute and defend these drug criminals. It is very easy for police to arrest drug users. They go to the neighborhood and “sell” drugs to addicts. Their partner arrests the users a moment later. They can arrest 100 people in a day like that. They go through the criminal justice system and weigh down the system.

The selective prosecution of immigrants and under-privileged drug users is horrifying. At frat parties across the country drugs are used with no consequence. The hobo who gets high goes to prison for a few months, years, decades even life. Three drug arrests and convictions can lead to life in prison (or more accurately death in prison). If someone who is undocumented gets picked up for a drug charge, even if the drug charge is dropped or fabricated they can be deported. Losing fathers, brothers, mothers and sisters to the drug war only increases the social problems in lower class neighborhoods.

In the last few weeks there has been an encouraging development, more and more news articles have appeared in the media calling for an end to the drug war.

First, The Guardian reported that world leaders were calling for an end to the international drug war. The names associated with the Global Commission on Drug Policy’s push come from all over the world. The problem exists internationally to the point that the US sends $1.4 billion in aid to Mexico and Central American nations to wage their drug wars at home. The commission is calling for decriminalization and legal regulation.

Then, in The Atlantic, I saw a great line from David Simon, creator of The Wire, which really told to story of the drug war to the people. The show is based on the real drug war in downtown Baltimore. It accurately portrays the many issues with the drug war. For some reason, Eric Holder asked for another season of The Wire. Simon said he would be happy to consider it if the administration was ready to reconsider its current stance on the drug war.

Next, President Jimmy Carter weighed in with his endorsement for ending the drug war. Citing the great work of the aforementioned international group, Carter turns the issue into a political one and talks about how great he was and how bad Reagan was. But there are some worthwhile points in his Op-Ed. For example, in California 11% of the budget goes to prisons and 7.5% goes to higher education. He calls on the American government to adopt the strategies of the Global Commission on Drug Policy.

Perhaps the most important factor is that Americans from all political ideologies can agree on this. Conservatives want to spend less money on drug enforcement. Liberals want to even the playing field for under-privileged folks and libertarians don’t want the government telling people what they can and cannot do.

We can all agree on this issue. Doesn’t it make sense to stop fighting about things we will never agree on for just a few minutes to end the War on Drugs? It seems to me that we can actually get some good work done if we would fix the things we agree about.

What should the drug policy be? Same as alcohol. Indoors only. Sold and taxed. Public intoxication or endangerment to others would be illegal.

What would happen? The courts would be less burdened. Our prisons would be mostly empty (and humane). The police and the citizens in their neighborhoods would have a less adversarial relationship due to less arrests and less fake drug sales. Police could return to more wholesome police work. Our local and federal government would have money to spend on much more important projects. We all win.

End this war.

Links: Guardian, The Atlantic, NY Times

How Not to Solve the Immigration Problem

rabbifink — Fri, 10 Jun 2011 19:01:05 +0000

No long winded legal, moral or social analysis here. Just an observation and an invitation for discussion.

Alabama has passed what has been called ”the strongest immigration bill in the country” by its creator. In essence, the bill gives state officials permission to question the citizenship of anyone in the entire state when there is “reasonable suspicion” that the person is here illegally. Public schools will be required to keep a record of every pupil in the system and whether or not they are here legally. (I am not an expert, but I’m pretty sure this is in conflict with established Supreme Court precedent requiring that states not make citizenship a burden on education.) It also prohibits undocumented residents from attending public colleges and requires all employers use the Federal E-Verify system before hiring any workers.

I have just two points to make. Then the floor is yours.

1) Clearly this is a far reaching bill that makes the government more powerful. I have become so accustomed to hearing that conservatives want to limit governmental intrusion. This seems to go contrary to that position.

2) Much more importantly, this is a bill that would allow law enforcement to profile and subject anyone who looks like they are here illegally to prove their legality. There is no way that this law will not be discriminatory and degrading. There is no way to determine if someone “looks illegal” without tapping into harsh and ignorant stereotypes.

Agree with the law?

Disagree?

Thoughts on immigration?

Link: NY Times

Plessy and Ferguson Kiss and Make Up

rabbifink — Tue, 07 Jun 2011 21:58:51 +0000

This has to be one of the coolest things ever.

Plessy v. Ferguson was the landmark Supreme Court case that held that racially segregated trains were constitutional so long as they were “separate but equal”.

Over half a century later “separate but equal” was shown to be a fallacy and inherently, separate was not equal.

Something that was drilled into me during my first year of law school, primarily by Professor Dan Schechter, was to put yourself in the the shoes of the people in the case. This is a useful tool because things can become so abstract in the law that we can forget that real humans are involved in the dispute and there are real human emotions often at play.

This idea is particularly poignant when discussing civil rights cases.

Plessy was a real person. Ferguson was a real person. Their names are forever linked in the controversy surrounding their case. Plessy challenged the legality of separate train cars.Ferguson upheld their legality. What Plessy did took a lot of guts. What Ferguson did did not but would we have acted differently? Their choices made a real difference in real lives. Plessy inspired a civil rights movement and Ferguson forced that movement to bide its time. Real people. Real consequences. Real history.

Recently, their grandchildren started a civil rights foundation. Together. They are rewriting their history from Plessy vs. Ferguson to Plessy and Ferguson.

Just beautiful.

Link: WaPo

Women’s Suffrage in 2011 Crown Heights

rabbifink — Fri, 15 Apr 2011 16:49:43 +0000

The 19th Amendment gave women the right to vote in the United States 1920. You can thank Susan B. Anthony (over there in the left) for that one. That was 90 years ago. That right to vote is essential because it gives women a voice in communal matters which directly affect them. It is fundamentally unfair to subject women to laws that are created by agencies that have no responsibility to women by virtue of the fact that women have no say whether they get voted or not.

It is really obvious that women must have the right to vote in a democracy.

An interesting issue has been raised in Crown Heights, the headquarters of Lubavitch and in particular regarding the Crown Heights Jewish Community Council. The CHJCC receives millions of dollars in Federal money and provides a huge amount of social services to local families.

It’s leadership, like the leadership of many orthodox Jewish organizations, is entirely male. The reason the CHJCC is led my males is actually written into its bylaws. In order to vote, one must be religiously observant, married, previously married or at least 30 years old and male.

It’s unclear to me if the bylaws prevent a woman from being voted into a leadership position, but that is unlikely given that women cannot vote.

There is a halachic precedent for women not taking religious leadership positions. This has been slightly marginalized in the last century with women taking positions of leadership in religious schools. Certainly, many Jewish organizations that are not religious in nature are permitted halachically to have women and do have women in positions of leadership.

Now, a young man from Chabad is challenging the validity of the male requirement.

Unable to use halacha to justify the rule, CHJCC has used a variety of “excuses” to explain the rule. modesty (as per usual), “tradition” and maintaining a peaceful marriage are among the reasons given during the discussion over this issue.

The current director conceded that the issue of women voting is being reconsidered by the council. A lawyer for the council has promised that women will be able to vote in the next elections.

Feeling that progress was not being made in private, closed door, conversations, the man challenging the council is considering taking the issue to the courts. Legally speaking, this would not a 19th Amendment issue, rather a 14th Amendment issue, under the equal protection clause. It could apply because the council is accepting Federal funds. It’s not a very strong case and would likely become a very difficult precedent if it required all organizations accepting a penny of Federal funds to adhere to the strict standards of the constitution regarding separation of church and state as well as the slightly discriminatory policies that many religious organizations may have.

Honestly, the policy really bothers me but I don’t think they would win a constitutional challenge. Especially not these days…

Link: NY Times

Judge Upholds the Law, Fox News Goes Insane

rabbifink — Thu, 24 Mar 2011 14:19:40 +0000

Fox News is reporting, and one of my Facebook friends is bleating, that a “Florida judge is defending his controversial decision to apply Islamic law instead of state or federal statutes in determining whether an arbitration award was correct”.

What this means is that a dispute arose between Muslims. It is some lawsuit about trustees on a board of a Mosque. Before the dispute, they agreed to go to “arbitration” to settle any future dispute. The arbitrator was to be an Imam and he was to be instructed to use Islamic law to settle the case. They did just that and I guess the losing party decided to give the American legal system a shot. The judge decided that the arbitration was binding and that the parties could not pursue futher litigation in the secular courts.

This is being portrayed as Sharia law creeping into America. For some, it is the confirmation they need that “the end is near”.

Fox News calls this a “controversial decision”.

Conservatives are pulling their hair out over this.

This makes me afraid.

Orthodox Jews use a similar system of arbitration to settle disputes between Orthodox Jews. The Jewish courts apply Jewish law and are held as binding by American courts. The Jewish courts are called Beis Din and their decisions are accepted as binding arbitration by the legal system.

In fact, here is a quote from an Illinois appeal from someone who was excommunicated in Beis Din and sued the Beis Din for intentional infliction of emotional distress:

Plaintiff has aligned himself with this particular Orthodox Jewish community and by doing so has accepted its laws, rules and procedures. One of these laws, of which plaintiff admits he was aware, allows for excommunication where, as here, the Rabbinic Court determines that plaintiff has refused three consecutive summonses to appear before it. Because of plaintiff’s actions and knowledge of this community’s rules and practices, the actions of the Rabbinical Court of which plaintiff complains are not so outrageous as to support a claim for intentional infliction of emotional distress.

Thomas v. Fuerst 345 Ill.App.3d 929

The secular courts are very deferential to the religious courts when the parties have agreed to use a religious court. Jews have experienced this many many times.

Thus, the Florida judge is doing exactly what he is supposed to do. There is no controversy here. This is not Sharia law taking over America. It is the laws of binding arbitration as applied to Islamic Law in nearly the EXACT same way it applies to Jewish Law.

So take a chill pill Fox News and your insane commenters.

Insane commenters like this one:

This judge should be removed from his seat and disbarred!There is n place in America for sharia law!If one wants to be more sharia compliant they need to pack all belongings and move to another country where these clowns are tolerated.THIS I AMERICA comply by OUR rules or get out!

Um, hello? The judge is applying American law. Got it?

Fair and balanced?

Link: Fox News

The Difference Between Murder and Terrorism

rabbifink — Tue, 15 Mar 2011 15:33:38 +0000

I was in Israel during the Itamar murders. I was in Israel when the Fogel family was slaughtered in their home. The Israelis I encountered over the days following the attack were split between those in agony and those who refused to contemplate the horror of the attack because it was too painful to consider. It was truly a national tragedy.

Aside from the humanity of the pain and suffering there was political trauma as well. Those who are more right wing were upset that the more lax parts of the Israeli government would even talk with Palestinians about peace. “There is no peace process” when a savage can murder a family in their home. Those who are more left wing were disappointed that their peace partners did not do more to prevent the atrocity.

As a law student, the first thing I thought of in a legal sense was what would happen in the USA under similar circumstances. I understand that the circumstances are completely different in the USA. I am speaking only hypothetically.

Typically, when 5 people from one family are killed in their home we would consider it a murder. The police would investigate. There would be a search for the serial murderer. Hopefully he would be caught and brought to justice in a court of law. A lawyer would defend him. The prosecution would need to prove their case. The jury would decide the defendant’s fate. In some states he might even get the death penalty. But before that, there would be several appeals.

When 5 family members living in an Israeli settlement are murdered in their home it is called terrorism. The suspect may be apprehended by the Israeli Defense Forces. He may be assassinated by the IDF. He may be placed in a military prison and exchanged for other prisoners of war left to sit out his days in Palestinian prison.

It’s very different.

But what is so different about the circumstances that makes one person a murderer and one person a terrorist? It’s not a question that can be taken lightly. We can’t just answer it by saying “it’s obvious”.

Do we look to motive? Is it because one murderer was trying to kill a family and the other murderer was trying to kill Jews? That’s not sufficient because we have hate crime enhancements in the USA that deal with crimes like these.

Is it simply that every murder caused by a Palestinian against a Jew is terror? I am not happy with that either. It be similar to the painfully archaic “gang enhancement” in the USA that basically makes any crime a memeber of a gang commits a felony in the furtherance of the gang, even when its not. That is not a good rule either.

Maybe it’s because when you take all the factors of the murders and all the facts of the circumstances and all the facts of the murderer the only logical conclusion is that it is terrorism? But is that true? Maybe. Maybe not.

The optimistic part of me still wishes that the heinous act was the work of a crazed man working alone, against the wishes of his friends, family, neighbors and government. I honestly wish we could believe that the murders were just that; murders. I wish I could be absolutely confident that this murderer is a social outcast and acted contrary to the beliefs of his environment.

But unfortunately, it’s seems painfully obvious that this was an act of terror. I just wish I knew how I knew that.

How Far Can the Police Go to Elicit a Confession? We’re not sure, but this is too far…

rabbifink — Wed, 09 Mar 2011 17:30:12 +0000

Sometime in 2007 a fellow named John Edward Dawson was arrested and indicted on burglary and drug possession charges. He was eventually found guilty of several charges. While incarcerated, Dawson was approached by another fellow who claimed to be a “Federal attorney”. He came promising Dawson’s release and he helped get Dawson’s car out of the impound. This fellow also elicited information from Dawson about other cases and urged Dawson not to speak with his appointed attorney.

When Dawson’s appointed attorney tried to meet with Dawson he was uncooperative. He told his appointed attorney that he had another lawyer so he wouldn’t need the appointed attorney anymore. The attorney had Dawson examined for insanity.

On the stand, one of the investigating officers let slip that it was he pretending to be an attorney who spoke with Dawson. It was he who told Dawson not to cooperate with this appointed attorney. Worse, his superiors has some knowledge of the charade but did nothing to stop it.

That is a big no no.

The Constitution guarantees the right to counsel. An officer of the government is prohibited from discouraging a suspect from seeking assistance of counsel. This is a basic right. The investigator deprived Dawson of his 6th Amendment right.

The Tennessee Court of Appeal reversed the judgment of the original case on these (and other) grounds. Good for them.

In my limited experience as a law clerk for the Public Defender I have seen the typical abuses of the investigators as used against their suspects. They tell outright lies. They make completely ridiculous and empty promises in return for cooperation. They threaten suspects. They keep suspects in interrogation rooms for hours and hours.

Suspects shouldn’t talk to the police at all. They should only speak through their attorneys. It is a huge, gaping whole in the criminal justice system. I believe that all suspects should be apprised immediately that they are under no obligation to speak with the police without an attorney present. But suspects like to talk. They talk and talk and talk. And usually get themselves into worse trouble than they would have if they had just kept quiet.

But Dawson’s saga goes beyond normative police practices. I hope that this will help raise some awareness regarding aggressive police tactics. It needs to stop.

HT: Rabbi Josh Yuter

Link: Reason.com

The Silver Bullet: Jury Nullification

rabbifink — Fri, 25 Feb 2011 21:13:12 +0000

Every defense attorney knows that even if the jury thinks the defendant is guilty there is one last chance for an acquittal. Sometimes the jury doesn’t care that the defendant committed the crime. Sometimes the jury would rather put a guilty person back on the streets then send them to jail.

I mentioned one of the earliest examples of this that I know about in my paper on Felony Murder, Regina v. Serné (see: My Article On Felony Murder Is Online).

A more recent and famous case in point: OJ Simpson. Jurors admitted that they let him off the hook in the criminal trial because it was their way of fighting against the oppressive criminal justice system.

When this happens, it is called jury nullification.

The judge warns the jury that they MUST follow the law, not their emotions. But if they follow their emotion instead of the law there is nothing anyone can do about it. The jury’s decision is final.

Quite the silver bullet.

Of course it is improper for a lawyer to explicitly argue for jury nullification. Lawyers are bound by the rules of the courtroom and if they don’t follow procedure they can be sanctioned or disbarred. But maybe a lawyer could wear one of those buttons above…?

But what if an activist is handing out information to potential jurors urging them to nullify?

Technically it’s legal. The activist is not telling people to break any law and his speech is protected by the First Amendment. In fact, many Law Review articles have recommended jury nullification in all cases until the justice system becomes more fair to minorities. The authors of theses papers may be hated by prosecutors, but there is nothing they can do to silence them.

The NY Times is reporting that a jury nullification activist named Julain P. Heicklin was handing out his materials outside a court house. Prosceutors had him indicted on the grounds that these pamphlets were tantamount to jury tampering. If found guilty he could go to jail for up to 6 months.

I am not sure that the prosecution will be able to convince a jury that a 78 year old man handing out pamphlets is guilty of jury tampering and even they did, who says they won’t nullify!?

But the real issue here, as Eugene Volokh writes, is the First Amendment issue. Even if speech is going to cause criminal activity, unless the criminal activity is IMMINENT the speech is protected under Brandenburg v. Ohio. The only way Heicklin’s speech is likely to be unprotected would be to say that free speech is somewhat suspended in a court or on court house steps. This is a viable argument but Heicklin was on the sidewalk not the court property.

It will be interesting to see what happens to the criminal case and if Heicklin is found guilty, you can be certain it will be appealed on First Amendment ground.

Links: NY Times and The Volokh Conspiracy

Let’s Get a Little Political: Should the Federal Government Be Sponsoring a Nascar Team?

rabbifink — Mon, 21 Feb 2011 19:31:26 +0000

During the Super Bowl I wrote one tweet about the ads. It got a lot of notoriety. (See: The Tweet That Made Me Famous (and what I meant by it)) But there was another tweet I had about the ads which I didn’t publish. Instead I made a real life comment to a fellow human being (my wife). (One of the problems with social media is that sometimes we type what we should be saying and we stunt our human interactions. So I try not to tweet if there is a human who can appreciate my observations…)

Anyway, what I didn’t tweet was an observation about some ads during the Super Bowl for the Marines. As you know, those ads are pretty pricey. About $2 million a pop. So I was surprised when I saw (I think) two ads for the Marines during the Super Bowl. That’s $4 million tax dollars recruiting for the Marines.

I was a little surprised and little disappointed. I was surprised because the ads are so expensive and disappointed because I wasn’t happy to see millions of tax dollars spent on an advertisement when the government is supposed to be cutting spending on social programs. Especially when the ones wh0 want to make the cuts are Republicans and they are also the ones who support spending on the military.

It bothered me. But not enough for a blog post. Then there were some votes in Congress.

In one day (February 18, 2011) the House voted to block Federal Aid for Planned Parenthood because there Planned Parenthood has been linked to [legal] abortions. Planned Parenthood was receiving a lot of aid. They will now receive none. Planned Parenthood is following the law and the Supreme Court has held that legal abortions could receive Federal funding.

It’s tough to see an important social organization lose their funding, but with a budget crisis it seems inevitable that some programs will be cut. Don’t get me wrong, I think Planned Parenthood serves an important Federal interest and should receive funding for all activities that the law permits. But, if there is no money, I understand they are a non-essential organization and could be privately funded so they lose their money.

But then on the same day, the House voted to approve a sponsorship of a Nascar team by the US Army. Now, I’m no fool, I know that the money to Planned Parenthood is much more significant than the money going to Nascar. But how does it look when you’re cutting funding to non-essential organizations like Planned Parenthood and giving it to even less essential places like Nascar!?

Between the Super Bowl ads for the Marines, the Nascar sponsorship and all the other billboards, TV ads and other marketing for the US Defense Forces, there is a lot of money at stake. The Federal government has no problem spending all that money.

Seeing that, I decided it was worth a blog post.

When you’re trimming the fat, you need to trim all the fat. Not just the fat that others are enjoying (remember in this analogy, fat is a “good” thing) while you leave the fat on for yourself…

————

I was less upset about the ads for the car companies that received bailouts from the Federal government. Those ads are part showing the world that the bailouts worked (whether they did or not is not relevant, the Big 3 have a right to try to convince the public that their Federally sponsored product is worth buying).

A Contentious Week of Rape Laws in the News

rabbifink — Mon, 07 Feb 2011 08:38:52 +0000

Ending with the Super Bowl, the topic that just kept on popping up in the news this past week was rape.

Ben (the Rapist) Roethlisberger lost the Super Bowl so score one moral victory for those who dislike rapists. But in the “real news” rape was on the table in several legislative bills and the details were pretty shocking.

First, there is a bill in the House that seeks to make it illegal to provide Federal funding for abortions. The bill has support from anti-abortion congressmen from both parties in the house. The bill came under fire for a specific clause in the bill completely unrelated to abortion.

The law recognizes that for some women, having a child would be harmful to their health and for victims of rape it could be inhumane to require them bear the child. The Supreme Court has made it unconstitutional to ban these kinds of abortions and the bill was trying to recognize this.

The language of the bill stated:

‘The limitations established in sections… shall not apply to an abortion– …if the pregnancy occurred because the pregnant female was the subject of an act of forcible rape or, if a minor, an act of incest…”

“Forcible rape” excludes rape where the victim did not resist the rape. This would have been horrible. Many women are taught that it is best not to resist a rape because the rapist “wants” the victim to struggle. Also, many victims of rape are drugged or in relationships and would not be considered forcible. This would mean that the victim of a non-forcible rape would not be able to get an abortion from a facility. Further, it was feared that the definition of rape in this bill would impact future legislation.

The bill was condemned by women, activist groups and seemingly every single person on Twitter. Luckily, the bill has been amended and the word forcible has been removed.

Score another moral victory for those who dislike all kinds of rapists.

Then a Georgia Senate bill was introduced seeking to remove the word “victim” from all rape legislation and replace it with accuser. Sounds pretty obnoxious, right?

At first I thought it was completely nefarious. It was absolutely my knee-jerk reaction to write a blog post talking about how big a moron the guy who proposed this bill must be.

But then I did some research.

I discovered that the only statutes in the entire corpus of Georgia law that contain the word “victim” are related to rape and other sexual crimes. As a law student, especially one interested in Criminal Defense and currently working at the Public Defender I know how difficult it can be for a sex criminal to get a fair trial. Calling a victim “the victim” presupposes guilt. Tipping the scales even further, in Georgia no other victim of a crime is called “the victim” in their criminal code.

UPDATE: At the Public Defender, the “victim” is called a “complaining witness” that sounds a lot more understanding than “accuser”.

Now, I don’t claim to know this legislator’s intention. If he was trying to keep the codes consistent and keep the deck from being stacked against defendants then I can at least understand his point of view.

But I am skeptical that those were his intentions. I have a feeling it was probably more along the lines of the “forcible rape” bill. But that’s just speculation.

Anyway, a big week of rape issues comes to a close. Hopefully the next week will be better…

Links: Huff Po, CBS

New York Department of Sanitation Complains That Too Many People Are Stealing Garbage

rabbifink — Thu, 30 Dec 2010 17:59:43 +0000

The best part of the Gregg Easterbrook article I mentioned yesterday was not What Really Happened 2000-2010? Time Magazine Says It Was Mostly Bad. It was something else that was in the news in New York a couple weeks ago.

The New York Times reported these facts:

Over the last several months, 22,741 New Yorkers contacted the city’s Department of Sanitation and arranged for the pickup of refrigerators, air-conditioners and freezers. In more than 11,000 instances, the machines vanished before sanitation workers arrived in their white trucks to pick them up.

Someone is the garbage and it is not the Department of Sanitation. So what is the problem?

The article says that this “theft” is costing a third party contractor a lot of business! In this case, stealing garbage is costing someone a lot of money. The loser here is Sims Municipal Recycling of New York L.L.C. the company that was supposed to profit off this garbage. This has prompted the NYPD to issue citations for those engaging in recycling without a permit.

Easterbrook is flabbergasted. The city pays Sims $65 million per year. If recycling was profitable, Sims would pay the city for the rights to recycle. Further, the “thieves” are actually saving the city millions of dollars. That is money that should stay in the pockets of its taxpayers.

I am equally disturbed. The city is making it a crime to save the city money! What’s next? Fines for using old paper towel rolls for school projects? Reusing my Snapple bottle for an avocado pit experiment?

But of more important significance is the issue of whether or not this is theft at all.

What happens when the New York City resident places his trash on the curb? Does that somehow transfer ownership to the city? The article says that the the trash belongs to the city. I don’t see how. I would imagine that the disposer’s thinking is: “It is my trash and and I am putting in on the curb for whoever takes it!”

Trash is trash. And one man’s trash is another man’s treasure.

The city should be applauding those who take the trash of their neighbor and put it to good use! Not fining them!

In Jewish Law there is a concept called hefker. This is a status of ownership where whoever takes the item first owns the item. A perfect example of hefker is throwing something in the trash.

I think it’s pretty clear that the city’s only interest here is their contract with Sims. I also think that New York taxpayers are being taken for a ride on the recycling train.

I am all for conservation. But bloating spending on conservation to specific contractors is not conservation, it is corruption.

Link: NY Times (Check out the comment on the article. Most are outraged New Yorkers.)

New York Court of Appeal Ruling: Golf at Your Own Risk

rabbifink — Wed, 22 Dec 2010 00:17:46 +0000

I was going to write my Entertainment Law Review article on this issue. (Instead I wrote about Cyberbullying)

A recreational golfer named Azad Anand was struck by an errant golf ball while he was retrieving his ball. He sued his golf partner, Anoop Kapoor for damages. Normally, if you strike someone negligently with a golf ball you are liable for damages. Similarly, if you negligently hit a hockey puck into someone’s face you are liable for damages.

However, when one is engaged in an organized athletic activity there is an assumption of risk. This means that the participants are aware that there is some inherent risk in playing the game and are willing to forfeit any potential damages.

Cases of this nature arose as a result of injuries sustained during boxing matches, football games and swimming competitions. The golf case tested the assumption of risk issue to see if it would be extended to golf. Golf is not really a sport with inherent risks. There are not too many golf injuries and that is because golf is not an inherenrtly dangerous activity. The plaintiff claimed that negligence during an activity that is not inherently dangerous and is not an integral part of the game (ie errant balls) therefore he should be able to recover for neglignce. Apparenltly, the defendant did not yell the customary “fore” prior to hitting the ball. This could amount to negligence and with no assumption of risk the defendant would be on the hook for damages.

The lower court and the higher court agreed that there is an assumption of risk in a recreational game of golf. Thus, even though golf is not a dangerous sport, participants assume the risks of the dangers that are commonly associated with the sport.

It’s not a landmark ruling but it is important to observe the development of this area of law.

Link: ABA Journal

Is a Ban on Circumcision Constitutional? Probably Not

rabbifink — Fri, 19 Nov 2010 17:46:17 +0000

Jerry Seinfeld and the Mohel

First they came for people who sit and lie on sidewalks and I didn’t speak up because I don’t sit or sleep on sidewalks.

Then they came for the Happy Meals and I did not speak up because I don’t eat happy meals.

Then they came for those who circumcise their sons and fortunately, there are plenty to speak up.

San Francisco is a favorite city of mine. I think I may have to reconsider.

The Happy Meal ban is dumb, but it doesn’t discriminate against a particular group. The circumcision ban would present a big problem for a lot of people. San Francisco “intactivists” are gathering the requisite signatures to place a circumcision ban on the ballot. If it gets on the ballot and gets enough votes, circumcision would be banned in San Francisco.

Judaism and Islam require male circumcision.

The proposed law raises some very interesting constitutional issues. It is very hard to prove discrimination against a religion. So long as there is another purpose for the law, besides discrimination, the law is likely to be upheld and not in violation of the “Free Exercise” Clause. If the proponents of the ban can show that there is a legal interest that is being protected by the law then it will likely be upheld.

The 14th Amendment protects a parent’s rights to make decisions for their child without interference from the government. The court has found that there is a Fundamental Right to “direct a child’s upbringing”. The issue here would be if there is a compelling government interest in banning circumcision. I don’t think the proposed law could withstand this challenge. If the court would not find that circumcision is part of “the upbringing of a child”, then the law would have a chance.

Any thoughts on the legal analysis? Lawyers? Law Students? Others?

I can completely understand why someone who is not religious would not want to circumcise their son. I can even understand why they think it is wrong or inappropriate. However, for a person who is religious, their religion is their law and their life. The “intactivists” claim that religion is a choice and the baby cannot choose their religion when they are getting circumcised. I think that most children raised in a mildly religious environment with a basic appreciation for their traditions and practicing some of those traditions will be happy to continue in their tradition and would appreciate their parents’ role in helping them be a faithful member of that religion, even if it means circumcision.

The health benefits and detriments are neglible as science has shown. Circumcision is about religion and not about ancient medicine.

As an aside, my father is a Mohel (traditional Jewish “circumciser”).

Meanwhile, the only thing this law would accomplish, even if passed, is that it would force Jews and Muslims who are compelled to circumcise their sons to either move out of San Francisco, or simply have the circumcision performed outside the city limits. Seems pretty silly to me…

Link: CNN

UPDATE: Follow up post here –> Circumcision Follow Up (or why circumcision is not barbaric for Orthodox Jews)

This Just In: Football is a Violent Sport

rabbifink — Thu, 21 Oct 2010 16:07:35 +0000

The National Football League is cracking down on violent hits. Following a Sunday where several players suffered devastating hits to their heads and a season that has seen a tick up in concussions, the NFL issued several fines of $50,000 or more to players who “led with their head” into another player’s head.

You might think that the helmet protects a player’s head, but it is just as effective as a weapon. Launching one’s helmet into another player’s head could be an effective way of breaking up a play but it also can cause a head injury of a serious magnitude. The NFL is trying to protect its players and “head shots” will be a suspendable offense from here on out.

Football purists aren’t happy. They think that if players are not allowed to use their helmets as weapons on the playing field the game is diluted and weak. Real football is dangerous and pretending otherwise will ruin the game.

Of course this is a pathetically misinformed argument. NFL players are people too. Head trauma does not heal like a torn ACL or turf toe. It can cause health problems for the duration of the person’s life, memory loss, early onset of Alzheimers, a shorter life expectancy. See Malcolm Gladwell’s article in the New Yorker from last Fall: OFFENSIVE PLAY. The dangers are real and scary. Protecting other human beings should override concerns (that are not even valid) that the game will be diluted. It’s a GAME! These are human beings! Incredible.

I love the NFL, but I hate the head shots. Violence makes me cringe and its no different on the Football field. I would love to see less violence in the NFL.

There is a legal issue as well. When someone engages in professional sports there is an “assumption of risk”. Participants waive their right to recover for damages suffered during the game, but only if the harms were caused as a result of behavior that is risky and inherent to the game. It could be argued that “head shots” are not inherent to the game of football. I know that I have played football without head shots…

There is a Jewish angle here too. I went to a Yeshiva High School (Ner Israel Mechina High School) where many of the rules of the school were determined by Torah principles. We played football most Saturday nights and we mostly played tackle football. We used no pads or protection; just our resilient teenage bodies. Fortunately, there were no serious injuries.

We were told that it was not “against the rules” to play tackle football but the Rosh Yeshiva (Rabbinic Leader of the school – a wise, saintly and holy man, R’ Yaakov Weinberg) held that playing tackle football was not permissible. He explained that tackle football is a sport where part of the game requires one person to physically maul another person. In his view it was against Torah principles to participate in a game that requires one to hit and potentially harm another person.

We played anyway, and we really tried not hurt anyone, but the lesson stuck. How can one play a game that makes you hurt another person? Contrast that with this quote from Jerome Harrison (fined $75,000 for 2 devastating hits):

”I don’t want to injure anybody, there’s a big difference between being hurt and being injured. You get hurt, you shake it off and come back the next series or the next game. I try to hurt people.”

Trying to hurt people? The game can be played beautifully without “trying to hurt people”. And perhaps more importantly, trying to hurt people is not the right way to treat fellow human beings.

My Paper on Snyder v. Phelps (The Westboro Baptist Church Case Being Argued in the Supreme Court)

rabbifink — Tue, 12 Oct 2010 23:43:08 +0000

Over the last few weeks there has been a lot of discussion about the Westboro Baptist Church. They protested Judaism last week in Brooklyn and they have a case in front of the Supreme Court.

I have been asked for predictions and my opinion on the issue.

Luckily, I wrote this paper for a Hate Speech Seminar I took at Loyola Law School in the Summer of 2010. There is some important legal background, a quasi-prediction and alternative suggestion for the future in there. (I was given permission to post the article by my professor.)

I hope you will take the time to read it, think it over and share your thoughts with me.

I try to avoid legalese, but if there is something in there that needs explanation please leave a comment so I can explain it to the best of my ability.

Enjoy.

(I also recommend watching the excellent documentary on the WBC which follows the paper.)

Sticks and Stones

Loui Theroux produced this fascinating documentary on the WBC:

World Against the Death Penalty Day

rabbifink — Sun, 10 Oct 2010 07:12:11 +0000

October 10, 2010 (10/10/10) has been selected as the 8th World Against the Death Penalty Day. See: here.

That is today.

This year’s DATDP is dedicated to the United States of America where 52 people were executed in 2009 and 106 death sentences were handed down.

I wholeheartedly support abolishing the death penalty.

Far too many innocent people have been exonerated before they were executed and unfortunately many were executed before they were exonerated. This is blood on our hands.

Further, as I have argued before, I believe there is a moral issue with man made laws being used to execute other human beings, especially when those people pose no threat if they are incarcerated. See A Moral Argument Against The Death Penalty for my basic argument.

Let us strive for a day where there is no murder and no need to continue the debate over the death penalty…

Do You Know How Many Prisoners Are In For Life Without Parole Who Committed Their Crimes As Juveniles?

rabbifink — Fri, 03 Sep 2010 22:50:55 +0000

Do You Know How Many Prisoners Are In For Life Without Parole Who Committed Their Crimes As Juveniles?

I do.

It depends where you ask this question. There is one answer for the United States of America, the Land of the FREE and the Home of the Brave and there is one answer for the REST OF THE WORLD.

In the REST OF THE WORLD there are 0 / ZERO / nil / Zed / zip / zilch / nada.

In the United States of America, the Land of the FREE and the Home of the Brave there are 2,600.

That is a lot.

Allow me to explain what this means. A 16 year old kid is involved in a homicide. He is found guilty. He gets a sentence of Life Without Parole (LWOP). That means that he goes to prison as a 16 year old and will NEVER see the light of freedom in his entire life. No matter how much he changes as a human being, no matter how productive he can be in society his crime costs him the rest of his life.

LWOP is pretty severe for an adult. But a adult is more culpable for his actions than a juvenile. Yet, me basically are willing to throw away a life for the crime of a child. I am sure we have all done stupid things as children. We grow out of them. Luckily for us we can grow out of them in freedom. For 2600 prisoners that will never have the opportunity to see freedom it won’t matter if they have grown up or been rehabilitated. The purpose of the Juvenile Justice System was once to rehabilitate youth. At this point, it is hard to imagine that is the goal if youth can be locked up forever.

It sounds pretty egregious, right?

One might be tempted to think that this would never pass a vote today. One might assume that if the legislature had a chance to give some youths who grew up and been rehabilitated they could have a chance to show that they are ready to return to society, the legislature would change the law.

SB 399 was that bill. It was voted on last week. It failed. It was close. But it failed.

I can’t believe it.

Hopefully, next time it comes up it will pass.

In the meantime I recommend watching this 30 minute video on some of the flaws of the justice system as currently constituted in the United States of America, the Land of the FREE and the Home of the Brave. It touches on SB 399 and many other important issues. Please watch it.

An Interesting Alternative to Prison

rabbifink — Sun, 15 Aug 2010 18:03:56 +0000

I have visited a prison and a jail. (My Visit With Judith Clark at Bedford Hills Correctional Facility) I have learned a lot about the failures of our current system of incarceration and it sickens me. As a (relatively) outspoken individual I have made my opinions known to anyone who will listen.

I tell them that I am against prison in principle. I don’t think anyone should go to prison. It’s a waste of money and far worse it is a waste of a human being. People accomplish almost nothing while incarcerated. Society gives them a free ride and they produce next to nothing for society.

The first response I hear is usually related to the safety of society. That somehow we, on the outside, are safer if the criminals are isolated, on the inside. While this is generally true, most crimes do not affect the middle or upper class of society . Most crimes are not violent. Most criminals that go to prison have someone step into their place in their social circle and the crimes continue. I know this is a pretty weak position, but I think that incarceration is also a weak position.

The next thing that I hear is almost always a challenge. “Do you have a better solution?” To which I have been saying “I think so”. Prisons are as an old insitution. They hearken back to a time that it was the only option for incapacitation. The loss to society caused by providing criminals with a prison was worthwhile because there was no other real option. Incarceration is a old system that was the best they could do.

I propose that criminals be monitored. Conviction of a crime is a waiver of one’s privacy. There is no privacy in jail. Instead of tossing them in a cell and monitoring that way, criminals should be monitored by corrections officers. They can be mother or fathers to their families. They must find jobs, they must be productive members of society and only if they lapse back into crime would they go to jail.

To me, this was a sci-fi idea that I had no way of determining its effectiveness or cost. Monitoring was a idea, but just an idea with no real data to back up the idea.

Last week I read a very well written article in The Atlantic (I don’t regularly read The Atlantic, I saw the article linked on Gizmodo) about Monitoring.

It demonstrates the feasibility of the idea and its preference over incarcertation for all but the most dangerous criminals. It explains how badly the current system is failing and the attractiveness of this alternative solution.

I highly recommend the article and I highly recommend the system as described in the article.

Currently, it costs about $50,000 a YEAR to incarcerate a criminal in California. No wonder we have a budget crisis. Monitoring is a much cheaper solution. It is a more humane solution. It is a more productive solution. It is the solution of the future.

The only question that remains is how long will it take us to reach “the future”.

I say, the future is now.

Link: Prison Without Walls

Controversial Ads Against Cordoba Center Are Ironic

rabbifink — Tue, 10 Aug 2010 14:36:13 +0000

The MTA has approved a pretty powerful anti-Cordoba Center ad.

Here is the ad:

I find the ad obscene. It is provocative, misleading and presumptuous all in one.

However, as much as the ICC has a right to exist, this ad has a right to exist as well. The same laws that protect the ICC, protect this obscene ad. (Note: If the ad was so incendiary as to cause violence it would NOT be protected by the constitution, in which case it would lose my meaningless approval as well)

The irony is that the folks behind the ad can hide behind the 1st Amendment but would deny the same rights to the Cordoba Center.

My Visit With Judith Clark at Bedford Hills Correctional Facility

rabbifink — Thu, 29 Jul 2010 17:23:59 +0000

This past winter I wrote an article about Felony Murder for a student run Law Journal at Loyola Law School. (Read: I’ve Been Published! My Article On Felony Murder Is Online)

In researching the subject of Felony Murder I was introduced to the case of Judith Clark by Professor Gilda Zwerman who accompanied me to visit with Judith. Judith Clark has a website all about her crime, time served and the way she has rehabilitated her life while in prison. (Link: http://www.judithclark.org)

On Monday I had the opportunity to spend a couple hours with her in prison. It was very powerful.

First, my overall impressions of the Bedford Hills Correctional Facility:

The prison experience at Bedford Hills contrasted greatly with my experience at “Twin Towers” in Los Angeles (largest jail in the USA). At Twin Towers there is a lot of intake and outtake. The inmates are constantly moving around, the entire facility is indoors and there is almost no sunlight anywhere. Bedford Hills is a sprawling campus with sunlight and grass. It gives it a totally different feel.

Also, the inmates had an different temperament from the inmates at Twin Towers. The women of Bedford Hills seemed pretty pleasant, there were a lot smiles and hugs and friendliness. At Twin Towers it was very much the opposite.

The coolest thing about Bedford Hills was their nursery / summer children’s program. They have great child care for children born while their mother’s are incarcerated. Even better is the summer program. Children stay in the neighborhood and come from 9-5 every day to spend the day with their mothers. The prison provides a nice outdoor area for them to play and hang out with their mothers and I got a great first-hand view of the benefits of a program like this. The kids were having such a great time being with their mothers.

On to Judith:

The first thing I noticed was that I could not stop smiling while talking to her. She has such a great energy and infectuous disposition that you just find yourself smiling the entire time you are with her. We talked for a long time about the crime and her Judaism and her daughter and her appeal (which she won but was later overturned for technical reasons) and her famous writing club and her pursuit of multiple degrees and her close relationship with the previous warden at Bedford Hills.

In short, we had a great time talking.

What was clear to me, was her regret for being involved with a radical group and her sincere effort to change as a person. I don’t think she is the same person she was 30 years ago. I do think that she is an incredibly strong woman with the ability to help inspire and change others. Unfortunately, she is stuck behind bars.

Her sentence was harsh. She pretty much asked for a harsh sentence during the trial. But she was young, immature and infatuated with a movement. That person is not in prison. That person has transformed into a new person who could do no harm the way she is now.

We put people in jail for a few reasons. Deterrence, incapacitation, rehabilitation and retribution.

30 years in prison is a strong deterrent.

Judith Clark is not a dangerous criminal, there is no need to incapacitate her anymore.

Judith Clark is rehabilitated. I can attest to that.

Isn’t 30 years long enough for retribution? Retribution for driving a getaway car?

Seeing her in there breaks my heart.

But with my heart broken, I was once again inspired by Judith. Just before my visit was over she said “If I died tomorrow how would I feel about my life? I’ve had a good life. It was severely limited by the walls of this prison, but I accomplished a lot and I am proud of who I am.”

Isn’t that what we all wish we could honestly say?

Rape by Deception is a Crime in Israel

rabbifink — Thu, 22 Jul 2010 15:39:51 +0000

An arab man lied to an Israeli woman about his ethnicity. After they “consummated the relationship” she discovered he was not Israeli, he was Arab. He was charged with rape.

He has been sentenced to 18 months in jail. He will appeal.

The headlines are scandalous.

Israeli Arab who ‘raped’ a woman says verdict ‘racist’

Sex with Jewish girl costs Arab man 18 months in Israeli jail

Israel’s Outrageous Rape Case

Over on DovBear (Israeli Court Shames Itself With Idiotic Ruling) there is a fairly predictable post and discussion about the merits of the Israeli court decision. I am certain that the conversation over there is reflective of many similar conversations around the world.

There are two points that I would like to address regarding this case.

First, the issue of consent to sex is highly volatile. On the one hand, it protects women by punishing low-lives who force themselves onto women who may be vulnerable. On the other hand it is very paternalistic. It basically tells women that “you cannot be trusted with men so the law will take care of you”.

It is not politically correct to say, but women are more vulnerable than men as a general rule. Men tend to be bigger, stronger and more aggressive. Could a woman beat me up? Yes. Could a woman rape a man? I am sure. But the history of men taking advantage of women tells me that women do need protection by the law.

Second is the inherent racism in the case. And no, I do not mean the court is racist in its ruling.

I mean the “victim”.

If the man is Israeli it is okay to sleep with him after just meeting him, but if he is Arab then it is not okay to sleep with him?

I don’t doubt that she feels this way. But what is the basis for her feeling this way? If she was very religious then perhaps she is concerned with the Jewish law of “marrying” a Jew. But I don’t think that is what it is.

I think it indicates a strong social aversion to Arabs in Israeli society. So strong that a woman who is willing to sleep with a new acquaintance would not do so if he was Arab.

The court is dealing with the facts on the ground. She would not have consented if she knew he was Arab. That legal issue deserves discussion. What I think is a more productive discussion is why she feels that way.

What factors are okay to consider before sleeping with a man and what factors are not okay? The court seems to think that ethnicity is important enough that her consent was voided. In Israel it is possible that it is that important.

Is it any wonder that Arabs feel 2nd Class in Israel?

I understand how and why that social reality came to exist.

I also think that perhaps it is more harmful than helpful at this point.

My Visit to the Museum of Tolerance at the Simon Wiesenthal Center

rabbifink — Mon, 12 Jul 2010 21:09:47 +0000

This summer I took a class at Loyola Law School called Hate Speech Seminar. The course was very discussion based with some non-traditional law school reading. We also read the key First Amendment (Free Speech) cases and important Law Review articles on regulating hate speech.

I learned a lot.

Part of the course was a trip to the Museum of Tolerance at the Simon Wiesenthal Center.

I took my tour of the museum today. What follows are some general impressions.

The museum is impressive. It is modern, hi-tech, welcoming and imformative. I have been to a number of the more prominent Holocaust Museums and exhibits. The Museum of Tolerance takes a unique twist on the Holocaust that I personally found more relevant than some of the other attempts to memorialize the Holocaust.

Perhaps most telling is the non-Holocaust exhibits. There museum has a universal message of tolerance and love that I can really relate to. I saw exhibits on segregation and prejudice. The truth is that even if there was no Holocaust exhibit, these exhibits made the trip worthwhile.

The Holocaust section focuses on the prejudices that existed in 1930′s Germany. The presentations are slick and grab your attention. The manner in which the information is presented is more like Epcot Center than a High School classroom. They use multimedia in a non-obtrusive way to convery their message.

The homage to shtetl life was sweet but I felt not entirely accurate. The romanticization of Jewish life in pre-war Europe is common and I only expected better from the MOT because they were so good at everything else they did.

As always, I was very drawn to the artifacts and Judaica on display. I absolutely love seeing real, used “things” from a time long gone. To see a Torah Scroll that was used hundreds of years ago, with its beautiful hebrew calligraphy and adorned with exquisite silver jewelry is very powerful for me. I also really enjoyed the day to day items on display. The collection includes a Cholent Pot from 19th century Germany. It is earthenware and marked with the words “Cholent Pot” and beneath that it has the family name. It looks really nice.

The overall theme of the Holocaust exhibit is that we all have biases. We need to work hard to overcome our prejudices to lead a more tolerant life. I agree whole-heartedly with that message and support the Museum of Tolerance in its work to disseminate that message.

If you are in LA or visiting Los Angles, make a few hour stop at the MOT. It will have an effect on you for a long time.

What Am I Supposed To Tell My Son?

rabbifink — Wed, 09 Jun 2010 06:08:44 +0000

[Alternate blog post title: Sex and the City 2 Billboards Are Offensive To Parents With Young Children.]

I love LA.

Living in LA has its perks. You get great weather 300 days a year, really friendly neighbors, not too many bugs, plenty of excitement, just enough peace and quiet, the Lakers, and a Shul on the Beach (with a lucky Rabbi). But like any big city, there are some drawbacks to living in LA. The traffic, superficiality, the helicopters outside my window at 2 AM, the expensive housing, and the schmutz.

What is schmutz? Literally, it means dirt. But in this context it means dirty in a provocative or an overtly sexual manner. (© me this very second)

Billboards rise like giant monoliths all over the city conveying their messages of sex, wealth and superficial, fleeting “happiness”. Now, most of the time I don’t complain about the billboards. Most billboards are innocuous enough. Some are a little too risque for my tastes, but it is nothing that disrupts my role as a decent human being or a parent. However, the over-hyped, flop of a movie called Sex and the City 2 has crossed the line of decency.

Sex and the City 2 billboards have overtaken the city.

Everywhere you look there is a big ol’ billboard with the giant words “Sex and the City 2″.

The word sex can mean one than one thing. But sex “in the city” has only one meaning. Sex is not a bad word when used in the right context and in front of the right audience. An inappropriate audience would be a listener who is not old enough to understand what the word means, what it entails and when its use is appropriate. It would be wrong to have an open, frank conversation about sex with a young child.

A seven year old child can read well enough to see the word sex, but is not able to understand the word. There is just no way to have a conversation with a young child about sex. It is not age appropriate.

My son reads all the billboards (and also tons of books) and sometimes he even remembers the words on the billboards. Sometimes he repeats the things he sees on billboards. One day he was muttering to himself “Sex and the City”. He says “I can’t get it out of my head”, “what does it even mean?”.

I know all about “Free Speech”. But when an audience does not have a choice or warning about the content of the speech it can be regulated. (See FCC v Pacifica: The Court accepted as compelling, the government’s interests in 1) shielding children from patently offensive material, and 2) ensuring that unwanted speech does not enter one’s home. The Court stated that the FCC had the authority to prohibit such broadcasts during hours when children were likely to be among the audience, and gave the FCC broad leeway to determine what constituted indecency in different contexts.) I think this rule could apply to billboards the same way it applies to radio.

The problem is that the speech is being directed at ANYONE who can read, with no warning and no way to shield a child from its message. That includes my son, who was reading simple words like “sex” (or fox, or dad, or mom, or dog) at the age of 3! Do people think it is appropriate for 3 year old children to read words that will be impossible to define for them?! A provocative image is not going to prompt the kinds of questions that a word can. A kid sees a word and can read it, the kid wants to know what it means! What is one supposed to tell their kids?

If someone was asking me what to do, I would probably try and come up with something clever like, “it’s an adult word and when you get older you will understand what it means”. I guess that is the best I can do. But I find it offensive that young children don’t seem to be considered in what is permissible on a public billboard.

I think there needs to be some level of regulation beyond what exists now. Am I crazy?

Is White Bias Racist?

rabbifink — Tue, 08 Jun 2010 06:04:42 +0000

This summer I am taking two classes at Law School that explore many of the issues and themes of racism. I am extremely fascinated by racism, and ethnic hatred. I am still sorting out my feelings on a lot of the issues and I am really happy that I am being exposes to the everything that we are discussing in class.

In Hate Speech Seminar we read a (poorly written, but very interesting) book about the White Supremacy Movement in California through the 80′s and 90′s. (It’s called Skinhead Confessions and you can buy it on Amazon: Skinhead Confessions: From Hate To Hope. Again, not very well written but very enlightening and an important book.)

The question we have been probing is: Where does racism come from? Why do people hate?

Of course, I welcome your suggestions in the comments.

CNN did a series on the famous Doll Test. (I wrote about the Doll Test in Simple Justice | The Story of Brown v. Board of Education: The End of Separate But Equal in Schools.) Anderson Cooper and a team at CNN performed a similar test to try and learn about how early racism can begin and whether we are effectively teaching our children the important lessons of non-discrimination.

I have included some of the video at the bottom of this post. To read more about their study go to the links at the bottom of the video.

In summary, there is a conclusive and scientific (link) “White Bias” among white and black students aged 4-5 years old and less so, but still present in white and black students 9-10 years old. Cooper and his team think this is a result of racist parents and preaching diversity and tolerance but not practicing it at home. This explains why so many children have a white bias.

I have a different theory.

Children, especially young children automatically gravitate to things that look like the things they are accustomed to being around. Young children associate with other children who share their most obvious characteristics. Whether it is height, body size, shirt color, lunchbox or skin color. When young children make choices it is often an indicator of things with which they are comfortable. Of course a white child, with white parents and white siblings is going to prefer things that are white. In fact I am surprised the numbers were not even higher and more in favor of white bias.

The troubling thing is white bias among black children. But this too has a very reasonable explanation. If a black child is a minority and feels like they are different, they will want to join the majority. If the majority is white, then a black child will gravitate to white. It is not racist. It is a white bias. But white bias does not equal racist. A young child with white bias does not portend a future with the skinheads.

I am certain that some of children come from bigoted homes and learned gross stereotypes from their parents. But I am also fairly certain that most of the white children just selected the things that were most familiar to them. Conversely, black children who are a minority want to fit in with the majority and selected the answers that they thought would help them fit in.

CNN, your study is great. But I don’t buy it.

Further, the guilt they made some of the parents feel over their children’s selections is plain sensationalist, irresponsible journalism. To take a few isolated questions asked of a 5 year old and show them to parents and then insinuate that the child is racist and the parents must also be racist is cruel, probably incorrect and a ratings grab. (Yes, believe it or not CNN pulled this shtick. You can find it somewhere on their impossible to navigate website.)

Is racism a problem? Yes.

To label 5 innocent 5 year olds racist because of their white bias? Come on, we are better than that.

Sports, Politics, Phil Jackson and The Arizona Immigration Law et al

rabbifink — Mon, 17 May 2010 23:36:26 +0000

The Zen Master has spoken. (Again. Remember? The Zen Master Speaks on Curses, Karma and Mitzvahs)

When asked about the Arizona Immigration Law – state Senate Bill 1070, by ESPN.com columnist J.A. Adande, Jackson raised a few eyebrow. In fact he raised enough eyebrows that a protest is planned for tonight’s game at Staples Center in Downtown LA.

The LA Times has a full report here: Activists protest Lakers Coach Phil Jackson’s comments on Arizona’s new immigration law

What did Jackson say that set off the protesters?

During their Playoffs Series against the San Antonio Spurs, the Suns wore Jerseys that paid tribute to the Latino community by tweaking the name of the team from Suns to Los Suns. That this is somehow a strong political statement is a stretch in my mind. Some people (including the players) felt that by wearing Los Suns on their jersey it was somehow a protest against the law. I don’t see it that way.

Nevertheless, Adande asked Jackson what he thought about the Suns political statement.

First Jackson, who has showed lefty leanings in the past, indicated he had no problem with the controversial state Senate Bill 1070.

“Am I crazy, or am I the only one that heard [the legislature] say ‘we just took the United States immigration law and adapted it to our state,’” Jackson said.

I told him they usurped the federal law.

“It’s not usurping, it’s just copying it is what they said they did, and then they gave it some teeth to be able to enforce it,” Jackson said.

Sometimes I feel exactly like Jackson. Am I crazy?

When the bill was passed the NY Times had this to say:

Arizona is the first state to demand that immigrants meet federal requirements to carry identity documents legitimizing their presence on American soil. (Full article here.) (emphasis added)

The law just enforces a Federal Requirement. Uncle Righteous (that’s Coach Jackson’s other nickname) is just standing up for Uncle Sam.

So Jackson is right. Yet the law has set off a firestorm. Why? I can think of a lot of reasons. But it seems misguided to take out your anger on Phil Jackson, or even the state of Arizona! This a Federal Regulation!

Anyway, I digress. There are two things I want to mention.

First, Adande makes a foolish assumption. He assumes that if a man is a Democrat or a liberal then he falls in line and supports every single policy of fellow Democrats. The money quote:

That was surprising to hear coming from a man who not only supported Bill Bradley for the Democratic presidential nomination, he wore a Bradley campaign pin on his suit during games.

Why is it surprising? Each issue has its merits and demerits. Why must we be pigeonholed once we hold one way in one issue that now in every other issue our opinion is pre-determined!? This bothers me a lot. Jackson has every right to feel one way on one issue and side with “liberals” and on other issues side with “conservatives”. If not, we cease to think and become party line robots.

Finally, sports and politics don’t mix. To me that means that an athlete or sportswriter or coach can have an opinion but it is not nearly as valuable as their relative expertise on sports. Is Jackson influential in political spheres? Absolutely not. So why protest his statements? Let the guy coach basketball and ignore everything else that he says.

That’s what I do…

Is the Rubashkin Saga / Trial Anti-Semitic?

rabbifink — Fri, 14 May 2010 05:55:11 +0000

This post has been cross-posted to DovBear. More discussion there. (Link)

If you are like me, you have been reading about the Rubashkin saga for months. What began with a Federal raid at a meat processing plant to ferret out hundreds of illegal alien employees is now culminating with a federal and state trial. (Link)

If you are like me, you have been hearing that the raid was “disproportionate” and fueled by anti-semitism.

If you are like me you have been hearing that he was denied bail because of an anti-semitic fear that Rubashkin was a flight risk and would flee to Israel.

If you are like me, you have been hearing that his federal sentencing recommendation was anti-semitic. (Link)

If you are like me, you have been hearing how the county jail was anti-semitic in not providing food that was kosher “to Rubashkin’s standards” and not permitting him to wear religious garb (tzitzis / tzitzit). (Link)

I have three things I want to say.

1) I feel terribly for Rubashkin. I feel terribly for any criminal who is sentenced to prison but more-so when the criminal is a family member of mine. As a fellow Jew, Rubashkin is family and it pains me to see him in this state. I support asking for leniency is a mentshlach way.

2) Rubashkin is the cause of much of the animosity towards him from the prosecution and judiciary. It is NOT, I repeat, NOT because he is Jewish, nor is it anti-semitic.

3) Even those who cry anti-semitism in this case are grossly misusing the term.

I think #1 is a well represented opinion throughout the Jewish community. It does not require any more attention from me. Consider me to have said “ditto”.

Number 2 is something that has been so wildly misunderstood it almost seems blatant. The reason Rubashkin’s plant was raided was NOT due to a plan hatched in the bowels of a Ku Klux Klan facility. The reason his plant was raided was because he snubbed the Unions by hiring illegals and the Unions were none-too-happy. They made the infractions known to the Feds and they raided the plant. Were there too many helicopters and fancy weapons? Probably. Was it anti-semitic? Probably not. The people who make these kinds of choices don’t, actually, CAN’T have vendettas against minorities. This is the Federal Government of the most benevolent host the Jewish people have ever had. Use your noodle people! There is no conspiracy! Who was president at the time? Our best friend George W. Bush. The federal agents were in his employ. Dare we think that the “anti-semitic raid” was orchestrated by our dear friend? Of course not.

Rubashkin was considered a flight-risk because agents found $10,000 cash in a packed bag with passports. Under normal circumstances that is a flight-risk. A packed bag with cash and passports could be reasonably interpreted as a “just-in-case” bag. Maybe it was a “just-in-case Moshiach comes bag”. I am willing to believe that was the case. But what would you think if you saw that bag and he wasn’t a frum Jew? Is it anti-semitism to draw the logical conclusion from finding that bag and denying him bail? Certainly not.

The sentencing recommendation was well within Federal guidelines. I was talking about the case to a lawyer friend of mine who works for the Court of Appeals and who knew nothing about the case. I told him some of the facts about the bank fraud. His immediate reaction was, “that’s a life sentence”. He didn’t know the crook was a Jew. He didn’t know the crook was accused of other crimes. He only knew about the bank fraud and he said “that’s a life sentence”. Is he anti-semitic? Who cares?! He didn’t know the cases involved a Jew when he said a life sentence was what the crook deserved!

Also, much has been made of “comparable criminals”. It is an unfair comparison because Rubashkin has not been cooperative. He was not willing to accept any plea deals. He maintains his complete, 100% innocence and is a difficult person for the court to deal with. He has many special requests and claims he is being victimized. He has offered only one half-baked apology since this saga began and has not taken any responsibility.

While in jail, Rubashkin has made special requests. Some have been honored and some have not. Some of the requests that have been honored and he has stated that he not satisfied with the kashrus of the food. It is kosher, just not kosher enough. Is it anti-semitic if they give him kosher food that most orthodox Jews would eat?

Also, Rubashkin will not walk without wearing Tzitzis. He states that his religion will not allow him to walk. So he has been carried around so that he will not violate this religious law. The problem is that he is with ignorant of the law or is just trying to be annoying. The law is that when one wears a four-cornered garment (think of a poncho or rectangular wrap) the garment must have a certain formula of strings attached to the garment at the corners. One is not required to wear such a garment. However it has become customary to wear one of these garments with the strings attached for prayer as well as during the day. But if you are not wearing a four-cornered garment the law does not require that you wear the strings (like a button-down shirt or blazer don’t need the strings). So why is Rubashkin making a stink out of an issue that is not religious? Is it anti-semitic if the jail does not cooperate with this?

I think it is clear enough that for every “anti-semitic” act against Rubashkin, there is a plausible non-anti-semitic explanation as well. Let’s just stop with the anti-semitism cries.

As for #3, I dare you to look a Holocaust survivor in the eye and call this anti-semitism. Try telling it to a Jew who was thrown out of Spain and Portugal for not bowing to the Cross. Or how about Jews who were slaughtered during pogroms? Being prosecuted for actual crimes is not anti-semitism. Anti-semitism is hatred and cruelty to Jews for no reason other than the fact that they are Jewish. That is not the case here.

I have more to say about anti-semitism in general. Stay tuned…

I’ve Been Published! My Article On Felony Murder Is Online

rabbifink — Wed, 14 Apr 2010 17:23:42 +0000

(what "publishing" meant before the internet)

There is a very ambitious fellow in our class at Law School. His name is Paymon Khatibi. One day Paymon decided that our class should start an independent journal of law related articles. We would write student notes just like the official Law Reviews and publish them online in a digital journal. Sounds easy, right?

Well it took a lot of work and management to have all the pieces fall into place. Incredibly, Paymon was relentless and did not give up on this dream of his. Today, that dream has become a reality. And for that we are all very grateful.

The Loyola Journal has been published online and is open to all readers. The inaugural issue has 76 pages and includes an interview with famed litigator Robert Shapiro as well as articles about immigration, domestic violence and Guantanamo Bay among others.

When Paymon asked who would be interested in writing for the journal, I volunteered. I like writing and thought it would be a great experience.

As we were studying Felony Murder in Criminal Law I met an incredible woman named Professor Gilda Zwerman from New York. She was taking a little break from New York and was staying in Venice. One Shabbos she decided to drop into the Shul on the Bwach where I am the Rabbi. We met a few times subsequently and she joined my family and some other guests for a Shabbos lunch.

Professor Zwerman told me about a famous Felony Murder conviction in my hometown of Monsey NY! A young Jewish woman (at the time, in 1980) was involved in a well-known Brinks truck robbery. We talked extensively about the case as Ms. Zwerman has become a strong advocate for the release of the now middle aged Jewish woman who has turned her life around while incarcerated.

I strongly urge you all to read her story at JudithClark.org.

Hearing Judith Clark’s story and reading up on Felony Murder while we were studying it in class really gave me a lot to think about. I decided to try and understand the doctrine and realized that in my opinion the whole thing is a huge mistake.

So I decided to write an article explaining how it came to be that we have such an unfair rule in our legal system. It is pretty interesting and is written in a way that a non-lawyer / law student should be able to understand it.

I hope you will take a few minutes to read it and feel free to sound off in the comments.

Loyola Journal link: http://loyolajournal.com/

Link to my article on Felony Murder: Felony Murder: A Dinosaur Living in the Criminal Justice System